Preserving Rights for Individuals Facing Guardianship

Abstract

THE ISSUE OF ADULT GUARDIANSHIP POSES INCREASing challenges in an aging society. Physicians play an essential role in ensuring its equitable and appropriate application. Yet physicians may be unaware of the evolution of guardianship law over the past 2 decades. Physicians are knowledgeable about their older patients’ functioning and such patients’ experiences with elder abuse, neglect, or exploitation. As a result, physicians are identified to provide opinions regarding the capacity of their patients to live safely in the community or to manage health and financial affairs when a question of guardianship is raised. In most states, guardianship concerns the capacity to make personal decisions about health, home, and personal matters, and conservatorship concerns decisions about financial management. Guardianship and conservatorship are legal interventions by the state in which the rights to make decisions are removed from one person and assigned to another after a hearing. Reform of guardianship law throughout the United States places physician reports in a central evidentiary role for balancing individual rights with protections for older adults facing guardianship. Requests to evaluate an older adult’s capacity to live independently or manage personal finances occur in the context of dementia or other late-life degenerative illness, when a family member, neighbor, or agency pursues guardianship.1 This can create an ethical dilemma for the physician. Is this a patient whose neurological, psychiatric, and medical conditions have impaired decision making such that a finding of incapacity is warranted and a surrogate must assume decisional control? Or is this a patient whose independent decisions and lifestyle—sometimes fiercely guarded—must be supported?